Remark 'Absconded' From Service Adverse In Nature, Casts Stigma; Cannot Be Passed Without Following Proper Procedure: Allahabad High Court

While deciding a case of termination of services of a government employee, the Allahabad High Court has held that mentioning that the employee “absconded” from service will cast a stigma on the employee as the word suggests that the employee deliberately fled from his work. It was held that such a remarks adversely affects the employee.The Court held that an order casting stigma on such an employee cannot be passed without giving them an opportunity of hearing. “Any person who is said to have "absconded" meaning thereby he has deliberately fled from his duty without obtaining proper action, reflects adversely on the conduct of any comment servant and hence casting an implication that the petitioner has absconded his cast stigma, and such an importation could not have been levelled without giving him proper opportunity of hearing.,” held Justice Alok Mathur.Factual BackgroundOn 31.12.2017, an advertisement was issued for the position of Dental Surgeon, Department of Medical Health and Child Welfare in the state of Uttar Pradesh. Petitioner applied for the post. On 14.12.2018, petitioner appeared in the MDS Exam for a post-graduate education in Speciality for Pedodontics and Preventive Dentistry. Petitioner was selected in the course and enrolled himself in the Government Dental College and Hospital, Nagpur, in 2019. Subsequently, the results for the post of Dental Surgeon were released and the petitioner was once again selected. He made an application to the Department of Medical and Health for grant of a study-leave.The Department rejected the said application and the petitioner filed a Writ Petition. The Court disposed of the petition, directing the respondents to pass an order based on the representation of the petitioner. The respondents considered the fresh representation and rejected it on the grounds that the petitioner was a Probationer and was thus not entitled to a study-leave. Aggrieved by the same, the petitioner filed another Writ Petition before the Court.On 30.12.2021, during the pendency of the aforementioned case, the petitioner went to join his posting. However, he was informed that his services had already been terminated by the means of an order dated 30.11.2021. The order stated that the petitioner had joined his service on 10.10.2020 and from the very next day, had proceeded to go on unauthorised leave, due to which his services had been terminated under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. Counsel for petitioner submitted that he was not a temporary government servant as had been appointed on a substantial post by following the proper procedure and would not fall under the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. Petitioner argued that the impugned order was also stigmatic because the reason recorded for his termination was that he had “absconded” from duty. Further, it was submitted that such an order could not be passed without giving an opportunity of hearing to the petitioner, making it violative of Articles 14 and 16 of the Constitution of India. Per contra, counsel for respondents stated that the petitioner had submitted his joining on the 10.10.2020. They argued that from the next day, i.e. 11.10.220, he absconded from his duties during the probation period. Thus, as per Rule-3 of the Rules of 1975, his services were terminated. It was contended that the conduct of the petitioner was an act of misconduct and the impugned order was passed justifiably and suffered no infirmities. High Court VerdictThe Court held that it was crucial for the respondents to have determined whether the petitioner fell under the definition of 'temporary service', prior to passing the impugned order. It was held that since the petitioner was appointed substantially on a permanent post, his services could not be termed to be of a temporary nature and fell outside the scope of Rule-3 of the Rules of 1075. Thus, the Court held that the order was “illegal and arbitrary and liable to be set aside.”Further, the Court held that the comment passed on the petitioner amounted to casting stigma on him. “… having regard to the consistent view taken by this Court that if an order of discharge of a probationer is passed as a punitive measure, without giving him an opportunity of defending himself, the same would be invalid and liable to be quashed,” held the Apex Court in Union of India and Ors. v Mahaveer C. Singhvi.The Court also referred to Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. where the Supreme Court drew distinction between “foundation” and “motive”. It was held that where an inquiry had been conducted on an officer behind his back and on the basis of the same, a termination order was passed, it would be treated as “founded” on allegations and would be held to be invalid. However, if the employer did not wish to inquire into the truth of the...

Remark 'Absconded' From Service Adverse In Nature, Casts Stigma; Cannot Be Passed Without Following Proper Procedure: Allahabad High Court

Upasna Agrawal

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